United States District Court, District of Columbia
A. HOWELL Chief Judge.
Mark Fam, who is proceeding pro se, brings this
action against his loan servicers Bank of America, N.A.
(“BANA”) and Green Tree Servicing LLC, now known
as Ditech Financial LLC (“Ditech”). First Am.
Compl. (“FAC”) at 1, ECF No. 18. The plaintiff
asserts claims for violations of the Truth in Lending Act
(“TILA”), 15 U.S.C. § 1634 et seq.,
and the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692 et
seq., as well as for breach of contract, common law
fraud, and breach of the implied covenant of good faith and
fair dealing. These violations all stem from the
plaintiff's March 2012 mortgage refinancing. Id.
¶¶ 143-73. Pending before the Court are Ditech and
BANA's respective Motions to Dismiss, see Mot.
Dismiss by Ditech Financial LLC, Green Tree Servicing LLC
(“Ditech MTD”), ECF No. 19; Mot. Dismiss by Bank
of America NA (USA) (“BANA MTD”), ECF No. 25, and
the plaintiff's motion for default judgment as to BANA,
see Pl.'s Mot. Default Judgment as to Bank of
America (“Pl.'s Mot. Default Judgment”), ECF
No. 26. Defendants move to dismiss the complaint primarily
for improper venue as well as for failure to state a claim
upon which relief may be granted, pursuant to Rules 12(b)(3)
and 12(b)(6) respectively, of the Federal Rules of Civil
Procedure. For the reasons set forth below, the
plaintiff's case is transferred to the Eastern District
plaintiff, a resident of the Commonwealth of Virginia,
refinanced his home with BANA in March 2012, sought a
forbearance in April 2013, and was purportedly granted a
six-month forbearance in May 2013, with the possibility of an
additional six-month extension. See FAC ¶¶
1, 4, 18, 24-29, 53. The plaintiff claims that in October
2013, he requested the second six-month forbearance period.
Id. ¶ 57. Nonetheless, in November 2013,
servicing of the loan was transferred to Ditech, which did
not honor or consider the additional six-month forbearance.
See Id. ¶¶ 69-70, 100. Instead, Ditech
immediately attempted to collect arrearages on the loan and,
beginning in 2014, sought to foreclose the plaintiff's
home of thirty years. Id. ¶¶ 102-06. The
plaintiff also alleges that in August 2014, he
“[e]ffected a [r]escission of the March 18, 2012
mortgage loan by sending a Notice of Rescission” to
both BANA and Ditech. Id. ¶ 5; see also
Id. ¶¶ 15, 106, 109, 113. The details relevant
to the pending motions are discussed below.
The Mortgage Refinance
plaintiff resides in Alexandria, Virginia and, on March 18,
2012, closed a home refinance loan for his property with
BANA. Id. ¶ 1. The settlement took place in
Virginia at a BANA branch with which the plaintiff was not
familiar, though he notes that the loan closer “was
sent from an office in Washington, D.C.” and had
“first suggested meeting at an office in Washington
D.C.” Id. The loan closer encouraged the
plaintiff, who was not represented by counsel, to sign the
documents quickly. Id. Although the plaintiff was
shown disclosure notices, he was not given any notices to
keep, as the loan closer left the room “to make
copies” and never returned. Id. ¶¶
1-2. Eventually, bank employees asked the plaintiff to leave
the branch, and told the plaintiff to contact the loan closer
in order to obtain copies of the documents he signed,
suggesting the plaintiff would receive the copies in the
mail. Id. ¶¶ 2-3. The following day, the
plaintiff contacted the branch manager for the location where
he signed the new mortgage loan in hopes of contacting the
loan closer. Id. The manager told the plaintiff,
“I've not seen him before, ” and the
plaintiff was at a loss for how to find the person who had
taken the only copy of his signed mortgage loan documents.
Id. ¶ 3. The plaintiff was never given any
copies of the forms that he saw during the loan closing.
Id. ¶ 4.
The Forbearance Agreement Promised by BANA, Followed by the
Alexandria City Police SWAT Team
April 2013, just over a year after refinancing his mortgage,
the plaintiff placed a series of calls to BANA to
“inquire about possible mortgage relief assistance
options.” Id. ¶ 17. During the first
three calls, the plaintiff was given a variety of reasons why
he was not eligible for assistance, including the date of
origination for the loan, that he was not behind on his
mortgage payment, and that his health concerns were not
“cancer.” Id. ¶¶ 17-19. The
plaintiff “made a series of verbal and written
complaints to the senior executives and to the Board of
Director[s].” Id. ¶ 22. At all times, the
plaintiff was current on his mortgage, though he did leave
his job during this time period due to medical issues.
Id. ¶¶ 20, 22.
plaintiff subsequently discovered that the Federal National
Mortgage Association, commonly known as “Fannie Mae,
” “had some stake in the home loan” and
began lobbying Fannie Mae “by telephone, emails, and by
U.S. mail and by in-person visits to [Fannie Mae]
headquarters in” the District of Columbia. Id.
¶ 23. On May 7, 2013, a Fannie Mae senior manager
informed the plaintiff that several relief assistance
programs were available to him and that her office had
instructed BANA to contact the plaintiff about those options.
Id. ¶¶ 23-24. Later that same day, Daniel
Whitehead, “a Vice President-Unit Manager in . . .
[BANA's] Default Servicing Complaint Resolution
Department” contacted the plaintiff and offered:
“A) one-year forbearance, with no payments; divided
into two ‘six-month segments[, ]', and, B) no
escrow, no tax capture or insurance payment, and C) no
adverse notations in [BANA] records, and D) no negative
credit reporting to any consumer reporting agency, and, E) no
late fees would be charged to the [plaintiff's] account
for the duration of the Special Forbearance.”
Id. ¶ 24. Whitehead added “that the
arrearage created by the one-year forbearance would be
‘put on the back end of the loan.'”
Id. The plaintiff requested a chance to “think
about the offer overnight and said he would call Whitehead
the next day.” Id.
next day, May 8, 2013, Whitehead told the plaintiff that he
“had full authority to produce and secure the
forbearance agreement and that . . . all the [plaintiff] had
to do was notify [Whitehead] that [the plaintiff] needed the
second half of the forbearance.” Id. ¶
27. The plaintiff agreed to all of the terms except that he
requested to pay some amount each month of the forbearance.
Id. ¶ 29. The parties agreed that the plaintiff
would pay $425 on the 15th of each month during the
the plaintiff received the Special Forbearance Agreement
(“SFA”) via email on May 17, 2013 and FedEx on
May 18, 2013, however, the documents were dated May 10, 2013,
“two days after the [plaintiff] and Whitehead entered
into a verbal agreement on the terms and conditions of the
SFA, ” and required that the first payment under the
agreement be paid by May 15, 2013. Id. ¶¶
30-31. The plaintiff “rushed to a BANA branch and
forced them to accept” payment, but the account was
marked late and late fees were charged. Id. ¶
32 (footnote omitted). On May 25, 2013, the plaintiff
received another letter from BANA, requiring payment by May
15, 2013, and indicating that the SFA may be cancelled in the
event of late payment. Id. ¶ 33. The June 2013
statement included a late fee for the May payment.
Id. ¶¶ 34, 38. After receiving the June
statement, the plaintiff attempted to contact Whitehead
multiple times regarding the late fees. Id. ¶
38. The plaintiff states that each payment was made on time
at a BANA branch, but negative reports were given to the
three credit bureaus. Id. ¶¶ 34-35.
19, 2013, the plaintiff received an email from Whitehead,
which stated that following successful completion of the SFA,
“the late charges will be waived from the account prior
to the reinstatement of the loan through either the creation
of a repayment plan, modification, or full
reinstatement.” Id. (italics omitted).
Whitehead's assurances, shortly after receiving the June
statement, the plaintiff received a letter that the
“entire SFA was in complete default.”
Id. ¶ 41. The next day, the plaintiff received
a Notice of Intent to Accelerate, which was dated June 26,
2013. Id. ¶ 42. That notice required two full
monthly payments plus late fees by August 5, 2013, in order
to cure the debt, “otherwise BANA would commence
foreclosure proceedings.” Id. ¶ 42. After
speaking with Whitehead about the Notice of Intent to
Accelerate, Whitehead sent the plaintiff an email stating,
“I have reinstated the Special Forbearance and will
continue to monitor the account weekly going forward.”
Id. ¶ 44.
3, 2013, in a conversation with Whitehead, the plaintiff
stated: “You are driving me insane, I can hardly
breathe any longer, I kept my end of the bargain.”
Id. ¶ 47. Shortly thereafter, the Alexandria
City Police SWAT team arrived at the plaintiff's house,
consisting of “a half a dozen officers, multiple
vehicles, in front of the [plaintiff's] home.”
Id. ¶¶ 48-49. When the plaintiff inquired
as to why the police had arrived, the police informed him
that, “[y]our bank called us from California.”
Id. ¶ 48. The plaintiff states that “it
was later determined after examination of records that
Whitehead had reported the Plaintiff as some ‘sort of
danger.'” Id. Following this, the
plaintiff went to the Alexandria Police headquarters and
“discovered that there was now a permanent
‘Police Record' associated with his property and
that information would appear on any police system that
searched the [plaintiffs] address, ” which the
plaintiff believes could impact his future employment
opportunities. Id. ¶ 51.
October 15, 2013, Whitehead called the plaintiff to remind
him that the first segment of the SFA was almost up and ask
if he needed the second segment. Id. ¶ 56. The
plaintiff requested the second six-month forbearance.
Id. ¶ 57. Whitehead told the plaintiff that an
associate would prepare the documents and that the plaintiff
should receive them by October 18, 2013. Id.
¶¶ 57-58. This was the last time the plaintiff
interacted with Whitehead, and the plaintiff never received
the promised documents. Id. ¶ 59.
October 23, 2013, the plaintiff reached out to Fannie Mae.
Id. ¶¶ 60, 64. The supervisor he spoke
with “informed [the plaintiff] that there was . . . no
notation in the system that showed anyone at [BANA] had
submitted a SFA extension request, ” which is required
for any forbearance over six months. Id. ¶ 64.
The supervisor noted her concern that nothing had been
submitted, as “it was highly unlikely that [Fannie Mae]
would receive [BANA's] extension request, review it, and
approve it within the eight (8) days remaining in the
month.” Id. ¶ 65.
Transfer to Ditech and Subsequent Events
October 21, 2013, the plaintiff received a letter, dated
October 16, 2013, that his loan was past due and would be
“forwarded for foreclosure proceeding if the
[plaintiff] did not immediately cure the outstanding
debt.” Id. ¶ 69. The next day, October
22, 2013, the plaintiff received a notice that the servicing
of his loan had been transferred to Ditech. Id.
¶ 70. This notice ...